Citation Nr: 1026818
Decision Date: 07/19/10 Archive Date: 07/28/10
DOCKET NO. 08-12 317 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to a compensable rating for gastroesophageal
reflux disease (GERD) and a separate compensable rating for
irritable bowel syndrome (IBS).
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Florida Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Heather M. Gogola, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1999 to November
2005.
These matters are before the Board of Veterans' Appeals (Board)
on appeal from an August 2007 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Virginia.
In April 2009 the Veteran was afforded a hearing at the RO before
the undersigned Veterans Law Judge. At the hearing he withdrew
his appeal for an earlier effective date for service connection
for several disabilities. The Board will limit its consideration
accordingly.
The issue of entitlement to an initial compensable rating for
GERD and a separate compensable rating for IBS is addressed in
the REMAND that follows the order section of this decision.
FINDING OF FACT
The Veteran's tinnitus originated during his active service.
CONCLUSION OF LAW
Tinnitus was incurred in active service. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.303 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
As a preliminary matter, the Board notes that the Veteran has
been provided all required notice, to include notice pertaining
to the disability-rating and effective-date elements of his
claim. In addition, the evidence currently of record is
sufficient to substantiate his claim. Therefore, no further
development is required under 38 U.S.C.A. §§ 5103, 5103A (West
2002 & Supp. 2009) or 38 C.F.R. § 3.159 (2009).
Legal Criteria
Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by active duty.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits under
laws administered by the Secretary. The Secretary shall consider
all information and lay and medical evidence of record in a case
before the Secretary with respect to benefits under laws
administered by the Secretary. When there is an approximate
balance of positive and negative evidence regarding any issue
material to the determination of a matter, the Secretary shall
give the benefit of the doubt to the claimant. 38 U.S.C.A. §
5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its
merits, the evidence must preponderate against the claim.
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1
Vet. App. at 54.
Analysis
The Veteran contends that service connection is warranted for
tinnitus because it began during his active service and is
attributable to his noise exposure in the engine room of a ship
and noise exposure from intermittent weapons fire during
qualification testing, during his active service.
Service treatment records document no pertinent complaint and do
not show that the Veteran was found to have tinnitus.
The Veteran was afforded a VA audiological examination in
December 2006. The Veteran reported a history of ringing in the
ears for the past two to three years. Additionally, the Veteran
reported a history of naval noise exposure in the engine room
aboard his ship as well as weapons fire during semi-annual
qualifications. The examiner provided a diagnosis of tinnitus.
The Veteran was also afforded a hearing before the undersigned
Veterans Law Judge in April 2010. During his hearing, the
Veteran testified that he had no acoustical trauma prior to
joining the Coast Guard in 1999. During his active duty, he
served aboard a Coast Guard Cutter where he spent a lot of time
either in the engine room or in an auxiliary room aboard the
ship. He also testified that he first noticed his tinnitus when
the ship would go into port, and things were quiet.
The Board notes that the Veteran is competent to state when he
first noticed ringing in his ears and to state that it has
continued since service. In addition, the Board has found the
Veteran to be credible. Therefore, service connection is in
order for his tinnitus.
ORDER
Service connection for tinnitus is granted.
REMAND
By an August 2007 rating decision, the RO granted service
connection for GERD also claimed as IBS, and assigned a
noncompensable evaluation, effective November 14, 2006. The
Veteran appealed, asserting that he should be entitled to
separate compensable ratings for GERD and IBS.
The Veteran was most recently afforded a VA examination to
determine the current degree of severity of his GERD and IBS in
October 2008. At his April 2010 hearing, the Veteran asserted
that his GERD and IBS had increased in severity since that
examination. Therefore, the Board has determined that the
Veteran should be afforded another VA examination to determine
the current degree of severity of these disorders. In addition,
while this case is in remand status, the originating agency
should obtain any outstanding records pertaining to treatment of
the disorders during the initial rating period.
Accordingly, this case is REMANDED to the RO or the Appeals
Management Center (AMC), in Washington, D.C., for the following
actions:
1. The RO/AMC should undertake
appropriate development to obtain a copy
of any outstanding records pertaining to
treatment of the Veteran's GERD and IBS
during the initial rating period, to
include any pertinent VA medical records
for the period since May 2009.
2. Then, the RO/AMC should arrange for
the Veteran to be scheduled for a VA
examination to ascertain the current
severity and manifestations of his
service-connected GERD and IBS. The
claims folders must be made available to
and reviewed by the examiner, and any
indicated studies should be performed.
The RO/AMC should ensure that the examiner
provides all information required for
rating purposes, to include information
required to rate the GERD under Diagnostic
Code 7203.
3. The RO or the AMC should also
undertake any other development it
determines to be warranted.
4. Then, the RO/AMC should readjudicate
the veteran's claim. If the benefit
sought on appeal is not granted to the
Veteran's satisfaction, he and his
representative should be provided an
appropriate supplemental statement of the
case and given the requisite opportunity
to respond before the case is returned to
the Board for further appellate action.
By this remand, the Board intimates no opinion as to any final
outcome warranted.
No action is required of the Veteran until he is otherwise
notified, but he has the right to submit additional evidence and
argument on the matter the Board has remanded. See Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs